The Issue Whether Respondent engaged in an unlawful employment practice when it failed to hire Petitioner for the position of Training and Safety Specialist in November 1998 and December 1998.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner first began to work for Respondent as a substitute school bus driver in November 1988, approximately half-way through the 1987-88 school year. He worked as a substitute bus driver for the remainder of that school year and approximately half of the 1988-89 school year until he was hired as a full time bus driver in January 1989. He continued to work as bus driver through the 1993-94 school year, a total of six and a half school years. In August 1994 (the start of the 1994-95 school year), Petitioner was hired as a para-professional, i.e., teacher’s assistant, in Respondent's Adjudicative Youth Program. Petitioner is still employed in that position. The program serves students who have previously been in the juvenile justice system and are now being reintegrated into the school system. Petitioner does not hold a teacher’s certificate. However, Petitioner has gained some teaching experience in his current position because he occasionally serves as a substitute teacher. Petitioner received an associates degree in criminal justice in 1995. He has taken additional classes towards a bachelor's degree, in business administration and in exceptional student education. However, he is at least a semester short of a degree in either subject. After Petitioner left his position as a school bus driver in 1994, he did not maintain his certification by taking the required eight hours of annual “in service” training and by taking an annual physical as required by Rule 6A-3.0141(9), Florida Administrative Code. In November 1998, Respondent posted notice of a vacancy for the position of Transportation and Safety Specialist. The position was coming open because Joe Dixson, the Training and Safety Specialist at that time, was retiring. The Training and Safety Specialist supervises the bus driver trainers and is responsible for coordinating the initial and continuing "in service" training of the bus drivers. The Training and Safety Specialist also serves as a liaison with law enforcement officials in the event a school bus is involved in an accident and is responsible for maintaining the bus drivers' records, including the commercial drivers license (CDL) records, which were examined by the State annually. The minimum qualifications for the position, as set forth in the November 1998 job posting, were: Knowledge, Abilities, Skills: Considerable knowledge of school bus operation and training program. Considerable knowledge of the hazards and driving safety precautions relating to transportation of students. Knowledge of rules and regulations of the School Board, State Board of Education and of State and Federal laws. Ability to maintain a driver education program. Ability to implement and maintain an effective working relationship with school personnel and the public. Training and Experience: Graduation from an accredited college or university with a Bachelor’s degree or equivalent Vocational/Technical training or certification. Five years experience in school transportation. Licenses or Certifications: Appropriate State of Florida Driver’s license. Florida Department of Education teacher [sic] certificate in school bus driver training. Physical Requirements: Light Work: Exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force as frequently as needed to move objects. Seven individuals submitted applications for the position, including Petitioner and Sharon Arnold. Petitioner, Ms. Arnold, and all of the other applicants were interviewed on November 20, 1998. The interviews were conducted by a five-member committee who scored each applicant on various issues. Petitioner's average score (82 out of 120) was the lowest of all of the applicants interviewed. By contrast, Ms. Arnold's average score (100.4 out of 120) was the third highest.1 Neither Petitioner nor Ms. Arnold were qualified for the position because they did not have a bachelor's degree or "equivalent Vocational/Technical training or certification." The certification was explained at hearing to be a teaching certificate issued by the Department of Education (DOE) to a plumber, for example, to teach a vocational class in plumbing. This explanation is consistent with DOE's rules. See, e.g., Rule 6A-4.076, Florida Administrative Code. None of the other applicants had these minimum qualifications either. Accordingly, Mr. Murphy recommended to the School Board that the minimum qualifications be changed to eliminate the requirement for a bachelor’s degree and to require only an “ability to obtain” the DOE certificate in bus driver training. The School Board approved Mr. Murphy’s recommendation. The purpose of the change in the minimum qualifications was to increase the pool of eligible applicants for the position. The effect of the change was to make Petitioner, Ms. Arnold, and potentially others eligible for the position. In December 1998, Respondent re-posted the notice for the Transportation and Safety Specialist position. The minimum qualifications for the position, as set forth in the December 1998 posting, were: Knowledge, Abilities, Skills: Considerable knowledge of school bus operation and training program. Considerable knowledge of the hazards and driving safety precautions relating to transportation of students. Knowledge of rules and regulations of the School Board, State Board of Education and of State and Federal laws. Ability to maintain a driver education program. Ability to implement and maintain an effective working relationship with school personnel and the public. Training and Experience: Graduation from high school or completion of GED. Five years experience in school transportation. Licenses or Certifications: Appropriate State of Florida Driver’s license. Ability to obtain a Florida Department of Education certificate in school bus driver training. Physical Requiriments: Light Work: Exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force as frequently as needed to move objects. The major functions and illustrative duties of the position were not changed in the December 1998 posting. The salary grade (14) and salary range ($28,800–32,490) also remained the same. The salary for the Transportation and Safety Specialist position was based upon 12 months of work. Petitioner's salary in December 1998 was $17,518, but that was based upon a 194-day (i.e., school year) contract period. Seven individuals, including Petitioner and Ms. Arnold, applied for the position as re-advertised. Of the original applicants, Ms. Arnold and Petitioner were the only individuals who reapplied. Petitioner, Ms. Arnold, and the other applicants were interviewed on December 9, 1998. The applicants were interviewed by a four-member committee who scored each applicant in the same manner as before. Ms. Arnold received the highest average score from the interviewers, 107.5 out of 120. By contrast, Petitioner's average score was only 82.5 out of 120.2 Based upon the interviews, the committee recommended to Mr. Murphy that Ms. Arnold be hired for the position. Mr. Murphy accepted the committee’s recommendation and Ms. Arnold was hired as the Transportation and Safety Specialist starting in January 1999. She was hired at the minimum salary, and she is currently employed in that position. Ms. Arnold was first employed by Respondent in March 1987, as a substitute bus driver. She was hired as a full-time bus driver in May 1987, in advance of the 1987-88 school year. She continued to work as a bus driver until she was hired as Transportation and Safety Specialist, a total of 11 school years. In addition to her duties as a bus driver, Ms. Arnold served as a bus driver trainer since 1993. In that capacity, she provided on-road training to newly-hired and prospective bus drivers by observing their performance and helping them learn their routes. Ms. Arnold volunteered for these additional duties, although she was paid her hourly wage for conducting the training. She provided this training during the week between her morning and afternoon bus driving shifts, and sometimes on the weekends. Petitioner never served as a bus driver trainer. Ms. Arnold is certified by the State as a CDL trainer and examiner for Class A, B, and, C vehicles. As a result, she is authorized to teach and test persons applying for a CDL license to drive a school bus, tractor trailer, and other large vehicles. Ms. Arnold assisted the Department of Highway Safety and Motor Vehicles staff as a CDL examiner during the summers and received positive feedback on her work. Petitioner is not a certified CDL trainer or examiner. Ms. Arnold is also certified by DOE as a school bus driver trainer. She holds a Level 1 certification which allows her to administer classroom training, as well as a Level 2 certification which allows her to administer on-road training. Petitioner does not hold the DOE certifications, although he has the ability to obtain them. Ms. Arnold received the DOE certifications in October 1998 after a week-long seminar paid for by Respondent. Ms. Arnold was recommended for the seminar by Mr. Dixson and her area supervisor. Mr. Dixson recommended her because of the dedication and hard work that she exhibited when working as a bus driver trainer. Other drivers were recommended for the seminar as well; however, Petitioner was not one of those recommended. In addition to her formal duties as a school bus driver, Ms. Arnold volunteered at Frost Proof Elementary School prior to the start of each school year to help answer parents' questions about their child's school bus route. There is no evidence to support Petitioner's contention that the minorities are systematically overlooked for professional positions in Respondent's transportation department. To the contrary, the evidence shows that since 1993 when Mr. Murphy was hired as the administrator responsible for the transportation department, minority employment in advanced positions has increased significantly, from zero to six (out of 18) bus driver trainers and from zero to six (out of 27) professional staff.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner’s charge of discrimination. DONE AND ENTERED this 14th day of May, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2002.
The Issue Whether the School District of Palm Beach County properly suspended Respondent for 15 days and, subsequently, terminated his employment for an incident at the bus facility compound on December 12, 2018.
Findings Of Fact The undersigned makes the following findings of material and relevant fact: Stipulated Facts Respondent was hired by the School District of Palm Beach County (“District”) on March 9, 2007. At all times relevant to this Administrative Complaint, Respondent was employed as a School Bus Driver I at the Royal Palm Beach Transportation Facility (“Royal Palm Facility”) with the District. Employee and Labor Relations commenced an investigation on September 9, 2019, that was assigned Case No. 19/20-026. On October 29, 2019, Respondent was notified that the superintendent intended to recommend a 15-day suspension without pay and termination of Respondent’s employment to the Palm Beach County School Board (“School Board”) at the November 20, 2019, School Board meeting. On December 18, 2019, Respondent requested a hearing at DOAH regarding the suspension and termination of his employment. 1 Instead of recapping or summarizing the relevant and material testimony of witnesses, one of the parties submitted a Proposed Recommended Order with Findings of Fact that included and recited significant provisions of the hearing Transcript verbatim. This was not helpful and is contrary to the custom and practice at DOAH. This practice is discouraged in the future. Facts Presented At The Hearing The School Board operates, controls, and supervises the District, pursuant to Article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. Petitioner has the authority to discipline employees pursuant to section 1012.22(1), Florida Statutes. Respondent was an experienced bus driver who had been trained in the proper method of interacting with supervisors, co-workers, and students, and exercising good professional judgment, and knew to follow certain rules, policies and directives. Respondent’s employment was governed by: a collective bargaining agreement (“CBA”) between the District and Service Employees International Union/Florida Public Services Union (“SEIU/FPSU”)(SB Ex. 77; Resp’t Ex. 11); School Board Policies (SB Exs. 70-74); Florida law (SB Ex. 75); and the School Bus Operators and Bus-Attendant Handbook (SB Ex. 76). Respondent was notified that he was being recommended for termination due to insubordination, ethical misconduct, and failure to follow policies, rules, or directives when he screamed and yelled at Senior Transportation Coordinator Cynthia Holloman (“Holloman”); used profanity, impolite language, and derogatory terms directed at Holloman which were heard by other employees as well; and left a school bus unattended in the middle of the bus driveway. SB Ex. 1; SB Ex. 4 at p. SB000022-35; and Pet’r Admin. Compl. Holloman testified at the hearing and her deposition transcript was filed. She was the senior coordinator at the Royal Palm Facility on December 12, 2018. However, the assignment of buses to the drivers was primarily handled by another employee, Bonnie Smith (“Smith”). As background, Holloman outlined that bus drivers would report to the facility in the morning to pick up their bus. If the driver’s regularly assigned bus was down or inoperative, the bus driver would be reassigned and take a substitute bus. The bus drivers were required to perform a pre-trip inspection each day to look for issues with their assigned bus. The pre-trip inspection would include, among other things, the drivers starting up their assigned bus. If the driver discovered an issue with the bus, the driver was required to fill out a form, bring it inside, and a mechanic would be assigned to fix the problem. If the problem could not be corrected, the driver would be assigned another bus. If another bus was not available, then Petitioner’s staff would assign an available driver a “double route” to cover the route. If a mechanic determined the bus was not safe to operate, then a bus would not be put on the road. Respondent testified that the morning of December 12, 2018, was an unusually cold morning. He had been assigned a bus that he believed did not have a working heater. His indirect concern with the heat not working was that the defroster linked to it would not function properly, creating a potential safety risk for the bus driver and the passengers. That morning, Respondent reported the problem with his assigned bus to Smith, and told her that he would not drive the bus in that condition. Marvin Jackson (“Jackson”), a bus driver at the Royal Palm Facility, also had a problem with the heater not functioning in his bus. Jackson testified that he would carry a rag or paper towels to wipe the windshield when driving. He took this action to operate his bus safely. Jackson indicated that on the morning of December 12, 2018, he also went into the office to complain about his heat not working properly. Leatrice Burroughs (“Burroughs”), another bus driver, testified that she also went to see Holloman on the morning of December 12, 2018, to complain about the heater on her bus not working properly. Holloman was in the dispatch office with Burroughs. Holloman was attempting to locate a bus with a functioning heater for Burroughs when Respondent arrived at the dispatch office. Holloman acknowledged that if the bus defroster was not working and the front windshield was fogging up, it would create a dangerous condition for the bus drivers. When Holloman was inside with Burroughs, Holloman heard Respondent outside raising his voice and cursing at Smith. Holloman agreed that Burroughs was in position where she could have heard Respondent using any profane or inappropriate language outside. Holloman heard Respondent cursing at Smith telling her he would not drive the bus without heat. Burroughs testified that she did not hear Respondent swearing or using any profanity. Holloman then spoke directly with Respondent and explained to him that there were no buses with heat available for him. He angrily responded and told her she was “full of sh_t,” in front of Burroughs. Burroughs denied hearing Respondent say that.2 Holloman related that during this same conversation Respondent, told her to “go f_ck herself” and that she instructed him to punch out and go home. Holloman also stated that Respondent called her a “b_tch,” and said he would park his bus and “sit on the clock.” When Holloman asked him if he was refusing to do his route that morning he replied “I’m not gonna do my route. I’m gonna sit here and I’m gonna get paid for it.” She responded that she was not going to pay him if there was work available and he was not willing to do the work. In response, Respondent told her “to go f_ck herself.” Notably, during this encounter with Holloman, Respondent made no mention or complaint to her about any problem with the defroster, nor did he claim that the bus was unsafe to drive. 2 It was not clear from the evidence what Burroughs’s proximity was to Holloman and Respondent during this discussion. Gary Mosley (“Mosley”), one of Holloman’s supervisors, arrived at the bus facility at some point after the heated exchange began. Respondent came back into the office. Holloman claims that, in the presence of Mosley, Respondent swore at her, at which time she stood up from her desk and told him she was not afraid of him. Mosley testified. He did not recall Louis swearing at Holloman, while he was in the office. However, when he spoke with Respondent outside, Respondent admitted that he said “f_ck you” to Holloman before Mosley arrived. Holloman also stated that Jackson was sitting in a chair right outside her office and could hear everything being said, including Respondent using profanity with her. Jackson testified that he never heard Respondent use any profanity that day. Jeanette Williams, a fellow bus driver, testified that she heard Respondent say he would not drive that “piece of sh_ t” bus. Pet’r Ex. 23. Dorinda Patterson (“Patterson”), another bus driver, provided a written statement for these proceedings. Patterson said that when Respondent left the office area she heard him say he was “not driving that piece of sh_t bus,” because it was “too f_cking cold.” Casandra Joseph (“Joseph”), who was a union steward, testified. She was contacted soon after the incident by Holloman regarding Respondent’s conduct on the morning of December 12, 2018. She was already at the Royal Palm Facility that morning. She spoke to Respondent immediately after the incident. He seemed very upset, was raising his voice, yelling and cursing, and used the word “sh_t.” However, Joseph did not hear what Respondent had said to Holloman earlier. Jose Pacheco (“Pacheco”), the bus shop foreman at the facility, testified. He was responsible for maintenance of the school buses. He testified that bus drivers are supposed to conduct pre- and post-trip inspections of their buses. If a bus driver has an issue during the pre-trip inspection they are required to contact dispatch, and dispatch will contact maintenance to see if they can resolve the matter. If maintenance cannot resolve the matter, they refer the bus driver back to dispatch. Pacheco was present on December 12, 2018, when Respondent complained about the heat not working on his bus. Pacheco testified clearly and distinctly that Respondent was yelling and using profanity. Respondent drove his bus in an area of the bus driveway and left it there, obstructing other bus traffic. His testimony was consistent with the testimony of other employees and was uncontroverted. The undersigned found his recollection of the incident to be particularly unbiased, credible, and persuasive. Of significance, Louis never mentioned to Pacheco that he would not drive his bus because the bus windows would fog up making the bus unsafe. Rather, it was Pacheco’s opinion that Louis was upset because it was too cold and his bus heater did not work properly. Smith, a transportation coordinator, also testified. Smith’s responsibilities included helping bus drivers get their buses on the road, helping with directions, and assisting bus drivers with their paperwork. Smith was assigned to the Royal Palm Facility. Prior to becoming a transportation coordinator, she was a bus driver. Smith testified that on December 12, 2018, she witnessed Respondent screaming at Holloman, stating that he did not want to drive his assigned bus because it was too cold. She overheard Holloman advise Respondent that if he was not going to drive his assigned bus, then he would need to clock out. Smith testified that during his heated exchange with Holloman, Respondent said “he was not driving a f_ cking cold bus.” And then he told her to go and “f_ck herself.” She related that Respondent then said that the administration did not know “how to treat the f_ cking drivers” and that is why he was acting the way he was acting. Because Respondent refused to drive the cold bus, Smith was asked to cover Respondent’s route. However, Respondent never gave Smith any paperwork to document or support his alleged concern with the heater or defroster. Carol Bello, a bus driver assigned to the Royal Palm Facility, also testified. Although she was not certain about the date, she recalled an incident approximately two years ago. Respondent was upset, loud, verbally abusive, and calling people names. She specifically recalled him stating, “F_ck you guys, I’m not driving that piece of sh_t.” She also saw him point his finger at Smith and call her “a bitch,” while ranting and raving in the bus compound around other workers and supervisors. She acknowledged that while some occasional profanity was used by bus drivers while clowning around, people did not talk to their supervisors like that. Joseph, another bus driver, testified that she had been a bus driver for fourteen years. On December 12, 2018, she observed Respondent come out of the office yelling and cursing at Holloman in the dispatch office. Respondent went on and on, cursing at Holloman and being very disrespectful to her. Respondent, Bernard Jean Louis, testified. While he admitted that he was upset that day, he essentially denied all allegations that he cursed at Holloman, or that he refused to follow his supervisor’s instruction. The undersigned did not find this self-serving testimony to be credible or persuasive, particularly considering the contrary and distinct recollection of events by several other trustworthy and more credible witnesses. The undersigned finds that Respondent’s profanity-laced tirade went on for some time and was done in different areas of the dispatch office and the outside areas of the bus compound. It is not surprising that some employees heard parts of Respondent’s outburst, while other employees heard other parts. Nonetheless, what clearly and convincingly emerged from the incident on December 12, 2018, is that Respondent was extremely upset because it was cold and he felt that the heater in his bus did not work properly. As a result of his uncontrollable and growing anger and frustration, he resorted to yelling, arguing, and cursing at his supervisor, Holloman, and failed to follow her directions. The undersigned credits and accepts the testimony of several witnesses on these points. Upon questions from the undersigned to clarify his testimony, Respondent admitted that he had not actually tested or inspected his assigned bus that morning before confronting Holloman about the problem. Rather, he concluded that his bus had an inoperable heater based on how this same bus had operated in the past. While there was a good deal of evidence relating to questions about a drug test taken by Respondent and second-hand evidence regarding the investigative role of other school board employees, this evidence was not particularly useful or relevant in this case.3 Despite no objection by either party to this broad array of other less relevant evidence, the issues in this case are framed and limited to the allegations of the Administrative Complaint filed by Petitioner, to wit: whether Respondent’s conduct or behavior on December 12, 2018, at the bus facility violated the law or school board rules or policies. Christian v. Dep’t of Health, Bd. of Chiropractic Med., 161 So. 3d. 416 (Fla. 2d DCA 2014) and cases cited therein. 3 More directly, the School Board abandoned and did not pursue the drug test as a basis for the termination. Respondent acknowledged this in the Amended Joint Pre-Hearing Stipulation. See Joint Pre-Hr’g Stip, § B., p. 2. To the extent other issues need to be resolved, the undersigned finds that the matter is properly before DOAH. Further, there was no persuasive evidence presented to prove that Petitioner failed to exhaust any administrative remedies, violated Respondent’s due process, or that Respondent failed to receive proper or sufficient notice of the conduct being relied upon by the School Board for his proposed suspension or termination. See generally, Fla. Bd. of Massage v. Thrall, 164 So. 2d 20 (Fla. 3rd DCA 1964).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order suspending Respondent without pay and terminating his employment. DONE AND ENTERED this 14th day of April, 2021, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2021. COPIES FURNISHED: Jean Marie Middleton, Esquire V. Danielle Williams, Esquire School District of Palm Beach County Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D. Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles D. Thomas, Esquire Thompson & Thomas, PA 1801 Indian Road, Suite 100 West Palm Beach, Florida 33409
Findings Of Fact At all times pertinent to the issues herein, Respondent, School Board of Hillsborough County, operated a school bus system for students attending the public schools run by it within the county. The program was and is administered by several different route coordinators who are authorized to hire the drivers for the buses operated on their routes. In September, 1985, Petitioner, William D. Gibbs, who had previously been working as a pipe fitter since 1972, applied for employment as a school bus driver in the Brandon area, for which Rosa Irene Barrow was the route coordinator. Mr. Gibbs could no longer perform the duties of a pipe fitter as a result of a work-related injury to his left knee incurred in 1984, but was fully capable of operating a bus. When he determined he could no longer work at his former trade, he began looking for other work, with a government agency, preferably, because of the benefits offered by most governmental employers. He applied for several county jobs and with the School Board with whose Job Line he kept in frequent contact. Mr. Gibbs submitted his written application for employment as a school bus driver in September, 1985, at which time he spoke with Ms. Barrow, discussing with her all aspects of his qualifications for employment as a school bus driver. One of the matters they discussed was the need for the applicant to have an appropriate place to park the bus when it was not in use. Petitioner assured her he had plenty of room to park it on the 9/10 acre grounds of the day care center his wife operated. Though Ms. Barrow claims she told Petitioner she didn't think a day care center was an appropriate place to park a school bus, it is found she made no comment to him regarding the suitability of the site he mentioned, nor did she give him any idea of whether or when he might be hired. Instead, she set up the required tests he had to take. Petitioner took and passed the required tests and was certified as qualified to drive a school bus. Several days later he spoke with Ms. Barrow who told him that they were not hiring drivers at that time, but to call back later on. Just about this same time, Mr. Gibbs also put in an application with the County's public bus system, (Heartline), and went to work there in January, 1986. He successfully completed his training program in February, 1986, and was assigned to work driving a bus, but quit before his probationary period was up because of abuse he received from his passengers and the danger of bodily harm. He was also accused of a fare impropriety but was later exonerated when the accusation against him was found to be based on a case of mistaken identity. When Mr. Gibbs left Heartline, he went to work for his wife at the child care center she operates, and still works there performing maintenance, running errands, working at the reception desk, and, periodically, driving the center's van. In May, 1986, he had another conversation with Ms. Barrow about his application for employment as a driver. Again he was advised that the county was not taking on any new school bus drivers. During the course of their conversation, Ms. Barrow asked Petitioner why he wanted to drive a school bus. Reportedly, she stated it was her experience that most men were not temperamentally suited to drive a school bus because they were over-aggressive in discipline. Ms. Barrow denies she said this, claiming that since he owned and operated a day care center, she felt he would be more likely to know what the problems were in dealing with children. If she did make that or a similar comment, however, she claims it was because the job is not for a lot of people and she tries to tell all her applicants that. In light of this and her testimony at hearing that she discusses with potential drivers the kind of behavior they can expect from the children, and the other less desirable working conditions which can be encountered, it is found that a comment such as is alleged by Petitioner could well have been made. In that regard, however, Petitioner admitted at hearing that the remark, instead of referring to "most" men, might have been "some" men. On this occasion, however, no judgement or other comment was made regarding Petitioner's proposed bus parking spot. After this second conversation with Ms. Barrow, Mr. Gibbs became suspicious of possible discrimination because of her comment about male temperament, but he had no real proof of that and did nothing. She again told him to call back in September, 1986, and when he did, he was met with the same response: they were not hiring but to call back in six months. When he did, he was again put off and told to call back at the end of the school year. This routine continued until he called in January, 1988, and spoke with Ms. Strickland, the route coordinator for another area, thinking chances of his success might be greater with another supervisor. When he identified himself and told her why he was calling, she told him that his September, 1985 application was no longer any good: employment applications were kept open only for 30 to 60 days, after which they are retired. Petitioner's application was kept on file, however, and was presented at the hearing in April, 1990. When, during discovery prior to hearing, Petitioner's counsel requested copies of all applications for driver positions from 1985 to the present, he was furnished with only those from 1989 to the present with the comment that all others were not available. Inquiry of administrative officials at the Board offices revealed such records were kept only one year before being retired and, apparently, no one could indicate where or under what conditions older documents were maintained. When Mr. Gibbs was told about his application by Ms. Strickland, feeling certain he was being discriminated against, he immediately filed his complaint of discrimination. Petitioner met, in his opinion, all the requirements to be a school bus driver. He lived in the area in which he proposed to drive; he was certified as a school bus driver; he passed all the tests given him; and, as he saw it, he had an appropriate place to park the bus. It is on this issue of an "appropriate" place to park that this matter turns. Ms. Barrow felt at the time of Petitioner's application, and believes to this day, that a child care center, with the frequency of ingress and egress traffic, and the presence of many young children, is not an appropriate place to manipulate and park a large bus. Even though she was initially mistaken as to the actual site in question, she had the correct site checked out by Mr. Saffold, her driver trainer and accident investigator, and checked it herself several times. Mr. Saffold, after numerous visits to the site, found it to be not appropriate for parking a bus due to the number of trees on the site and the other cars routinely parked there. In addition, there is a circular drive which gives little room for maneuvering. Ms. Strickland also went out to see Petitioner's site, and she, too, found it unacceptable for much the same reason cited by Mr. Saffold; the trees, the lack of maneuvering room, and the on- property traffic due to pick ups and drop offs. Ms. Barrow concluded that a day care center, with its heavy traffic of people coming and going, was not an appropriate place to park a 35 foot bus. She told Petitioner that he should find an "appropriate" parking place within a reasonable distance of his residence, such as at a church or other off-street facility. There is no central bus parking compound at Ms. Barrow's facility. There is, as Petitioner contends, ample space at the side of his facility to physically locate the bus when parked. That is not the basis for disapproval. The appropriateness of the site is, however, and the question of appropriateness is a subjective one with the decision on what qualifies and what does not left up to the route coordinator. Ms. Barrow, the coordinator for the area in which Petitioner applied, concluded the site proposed by Petitioner to park the bus was not appropriate. In this conclusion she was joined by another coordinator, Ms. Strickland, and a driver trainer and accident investigator, Mr. Saffold. In light of the evidence presented and the considerations pertaining, it cannot be said her conclusion was wrong. Within the Board's school bus operation, there are 12 route coordinators, none of whom are male, who supervise a total of in excess of 700 drivers. Within Ms. Barrow's area, she supervises 67 drivers, each of whom has between 2 and 4 daily runs. Each run is made up of 1, 2, or 3 schools. Drivers are hired, initially, as substitute drivers who fill in on an "as needed" basis for regular drivers. The substitute driver position is a part-time job which lasts for 10 instead of 12 months of the year. No set amount of working hours can be guaranteed. The average substitute driver works from 6.5 to 7.5 hours per day. Whereas regular drivers are guaranteed 6 hours work per day, substitute drivers get no guaranteed minimum and are paid only for the hours they actually drive. Substitute drivers may remain in that category for between 6 and 18 months. Regular drivers are hired from the ranks of substitute drivers. Driver criteria include a good driving record; completion of the 10th grade; and an "appropriate" place to park the bus. Board personnel consider the most critical of these to be the place to park the bus. It must be a safe, off- street location, and the problem of finding a suitable parking space is becoming more and more difficult. Of the 67 drivers under Ms. Barrow's supervision, 3 are male. During the 9 years she has served as a route coordinator, she has hired 3 or 4 male drivers. However, she gets very few male applicants and this is the basis for the low number of drivers. Ms. Strickland has 6 or 7 male drivers out of 68 full time and 11 substitute drivers. Of the applicants for drivers in her area, 3% to 4% are male. Mr. Saffold, who has worked for Ms. Barrow since March, 1981, has never found her to in any way discriminate against men. As a part of his job, he periodically goes out with the route coordinator to check on proposed parking sites for buses. On the 3 or 4 times he has done this, he has found the site to be inappropriate twice. Petitioner claims that the inappropriateness of his proposed parking site was not made an issue until after his complaint was filed. According to Mr. Saffold, it has been the continuing policy in Ms. Barrow's area to check the proposed parking site before giving the required tests to driver applicants. In the instant case, this was not done. Petitioner claims reimbursement for back pay. He filed his charge of discrimination on April 4, 1988. Any back pay due would then begin to accrue no earlier than April 3, 1986, two years prior to the filing of the charge. After being told there was no employment available for him at Respondent's Brandon bus barn, Petitioner took a job with the city bus line, Heartline, in January, 1986 and resigned in June, 1986. He earned $5.25 per hour during the entire time he was so employed. After leaving the city, he went to work at his wife's day care center where he earned $7.00 per hour and is still employed at $7.20 per hour. The job at Heartline, driving a city bus is clearly equivalent to that of driving a school bus. His duties at the day care center include periodic bus driving but is primarily of an administrative or maintenance nature and cannot reasonably be considered "substantially equivalent" to those of a school bus driver. Petitioner admits that after leaving Heartline, he did not inquire about or apply for other driving positions. Petitioner has requested attorney's fees and costs in the amounts of $22,500.00 and $1,471.85, respectively. Attorney LaPorte, testifying on behalf of Petitioner, indicated the Respondent's hourly fee of $150.00, when considered in light of his extensive experience and the considerable amount of research and preparation required herein, was not unreasonable. There was no evidence on the part of the Respondent to dispute Petitioner's claim and it is accepted as proven. The costs detailed in the exhibit attached to Respondent's post-hearing memorandum is also considered reasonable and is accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's Petition For Relief, alleging unlawful discrimination on the basis of sex, be dismissed. RECOMMENDED this 1st day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-2016 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner submitted two Proposed Recommended Orders - a long form and a short form. Both contain proposed findings of fact which are identical. The difference in Proposed Orders relates to the legal discussion which pertains to the proposed Findings of Fact. Proposed Findings 1 - 12 related primarily to procedural matters leading up to the final hearing. Finding of Fact 13 consists of several paragraphs which, for the purposes of this discussion, shall be re-numbered 13(a) through 13(m). 13(a). Rejected as not a proper Finding of Fact. The "concession" regarding liability appears to have been a part of proposed settlement negotiations and cannot be considered binding as to Findings of Fact after hearing which are based on evidence presented at the hearing. Attorney's fees are considered reasonable. 13(b). Accepted and incorporated herein. 13(c). Accepted and incorporated herein. 13(d). Accepted. 13(e). Accepted and incorporated herein. 13(f). Accepted and incorporated herein. 13 (g). Accepted and incorporated herein except for last sentence which is a restatement of evidence and not a Finding. 13 (h). Statistical information contained is accepted and incorporated herein. The balance, relating to the establishment of a prima facie case of discrimination is not a Finding of Fact, and is not supported by the evidence. 13(i) Rejected. 13(j). Accepted as to the facts but rejected as to Petitioner's conclusions as to the foundation for an adverse inference. 13(k). Accepted. 13(l). Accepted. 13(m). Accepted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. Accepted and incorporated herein. - 8. Accepted and incorporated herein. Accepted. & 11. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 15. Accepted and incorporated herein to establish that Ms. Barrow made some comment about "some" or "most" men not being emotionally suited for drive a school bus. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. COPIES FURNISHED: Robert H. Mackenzie, Esquire 17 McKendree Dr. Wesley Chapel, Florida 33544 Ronald W. Fraley Thompson, Sizemore & Gonzalez, P.A. 109 North Brush Street, Suite 200 P.O. Box 639 Tampa, Florida 33601 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issues in these cases are whether there is just cause to terminate the employment of Kasha Brunson, and whether there is just cause to terminate the employment of Maria Colina.
Findings Of Fact Ms. Brunson has been employed by the School District since August 20, 1996. She is currently a bus attendant in the School District's transportation department. During her tenure with the School District, Ms. Brunson has had excellent performance evaluations. Ms. Colina has been employed by the School District since February 9, 2000. She is currently a bus operator in the School District's transportation department. During her tenure with the School District, Ms. Colina has had excellent performance evaluations. Both Ms. Brunson and Ms. Colina are governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPLAC) and the School Board. Provision 7.10 of the SPLAC agreement provides: "Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause." The SPLAC agreement does not specifically define just cause, but Provision 7.10 of the SPLAC agreement provides that allegations of misconduct and poor job performance, which could result in suspension without pay or termination of employment, could be investigated, and a recommendation for discipline could be made to the superintendent as a result of the investigation. Provision 7.11 of the SPLAC agreement provides: [D]isciplinary action(s) taken against SPLAC bargaining unit members shall be consistent with the concept and practice of the provisions of 7.10 of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. On December 7, 2010, Ms. Colina was the bus operator, and Ms. Brunson was the bus attendant on Bus 134. The bus was assigned to pick up exceptional education students on its morning route to East Lee County High School (East Lee County). The bus has approximately six rows of seats. On December 7, 2010, the bus had two stops for East Lee County and picked up students C.E., a female, and T.T., a male, for delivery to East Lee County. C.E. and T.T. are tenth-grade students; however, they are mentally delayed and function between a fourth and sixth-grade level. In late October 2010, Ms. Brunson and Ms. Colina had been advised to keep C.E. and T.T. separated. The students were not to speak to one another, and they were not to sit together. Ms. Brunson and Ms. Colina were not told the reason why they were to keep the students separated, and they both assumed the students had been involved in an argument. On December 7, 2010, the bus arrived at East Lee County approximately 15 minutes prior to the bell ringing. Ms. Brunson, Ms. Colina, and the two students remained on the bus while waiting for the school to open. T.T. was seated in a seat at the rear of the bus across from Ms. Brunson. C.E. was in a seat at the front of the bus directly behind Ms. Colina, five rows in front of Ms. Brunson. T.T. asked Ms. Brunson for permission to change the radio station. She gave permission, and T.T. got up and walked to the front of the bus where he changed the station on the on-board radio. In order to change the radio station, he had to reach across Ms. Colina. Instead of returning to his assigned seat, T.T. sat down next to C.E. in her seat. Neither Ms. Brunson nor Ms. Colina saw T.T. sit next to C.E. At some point, Ms. Brunson observed T.T. in the seat with C.E. She felt that something inappropriate was happening, and she called T.T. back to his seat. Ms. Brunson reported the incident to Dale Maybin (Mr. Maybin), her supervisor for that day, as soon as C.E. and T.T. left the bus. Later in the morning, she also advised Shannan Pugh (Ms. Pugh), who was the paraprofessional who was supervising C.E. and T.T. at their work site. She told Ms. Pugh that, when T.T. stood up from C.E.'s seat, she saw C.E.'s head "pop up." In addition to the East Lee County delivery, Bus 134 was assigned to a route for students at Manatee Elementary School (Manatee). The Manatee route began after the completion of the East Lee County route. On the morning of December 7, 2010, Ms. Brunson and Ms. Colina had been assigned two additional students to the Manatee route beginning on December 9, 2010. At the time of the incident involving T.T. and C.E., both Ms. Brunson and Ms. Colina claim that they were doing paperwork related to the assignment of two new students. Bus drivers are given 15 minutes each morning and 15 minutes each afternoon to do a pre-trip inspection and to do paperwork. The paperwork involved in adding the two students to the bus route was minimal. The students' names would be added to the seating chart, and the students' names and I.D. numbers would be added to a Medicaid form. Once the bus arrived at Manatee where the students were to be delivered, the driver would receive additional information from the school and fill out a TR-1 form and get an emergency information card, which was to be placed in the bus. At the time of the incident on December 7, 2010, the only paperwork that needed to be done would be to add the names of the new students to the seating chart and to place the students' names and I.D. numbers on the Medicaid form. Although Ms. Colina had the responsibility of completing the paperwork, she and Ms. Brunson divided the paperwork. The longest time that it should have taken each person to do the paperwork was a couple of minutes. Respondents claim that they were unable to adequately supervise the students because of attending to paperwork is not credible. The amount of time that it would have taken to do the paperwork was minimal and should not have precluded Respondents from keeping an eye on the students. Additionally, Respondents should not have been doing their paperwork at the same time. Obviously, if both Respondents are doing paperwork at the same time, no one is watching the students. Because Respondents were doing paperwork does not relieve them of the responsibility of adequately supervising the students and keeping the students separated. The reason that C.E. and T.T. were separated stemmed from an incident in October 2010, when C.E. and T.T. had engaged in inappropriate activity during a work study program. C.E., T.T., and five other students were assigned to work off-campus at a grocery store. The students were supervised by two paraprofessionals from East Lee County. C.E. and T.T. left the area in the grocery store where they were assigned and went into the men's restroom together. C.E. admitted having sexual contact with T.T. while in the men's restroom. School officials changed the classroom and work study schedules of the two students to eliminate contact between the students. Ms. Brunson and Ms. Colina were aware that C.E. and T.T. no longer went to the work site on the same days. No disciplinary actions were taken against the two paraprofessionals as a result of the incident at the grocery store. From late October 2010 to December 7, 2010, Ms. Brunson and Ms. Colina kept C.E. and T.T. separated while on the bus, and the students did not engage in any inappropriate contact on the bus until the incident at issue. Respondents claim that they would have been more diligent in supervising the students if they had known that the reason that the students were being separated was for previous sexual misconduct. This reasoning for failure to adequately supervise is no excuse. Respondents should have adhered to their charge of keeping the students separated no matter the reason for the students being separated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that there is just cause to discipline Ms. Brunson and Ms. Colina and suspending Ms. Brunson and Ms. Colina without pay from March 8, 2011, to January 1, 2012. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
Findings Of Fact Based upon all of the evidence, the following findings of fact are made: At all times material to this proceeding, Petitioner employed Respondent as a school bus driver pursuant to an annual contract. Said annual contract may be terminated for probable cause as set forth in Petitioner's local rule 3.27 (Exhibit P4). Respondent's employment was also subject to a union contract between the Petitioner and the International Brotherhood of Firemen and Oilers, Local 1227. Article 39 of said union contract provides for a formal hearing under Chapter 120, Florida Statutes, when the Superintendent recommends termination of employment for any member of the bargaining unit. Upon employment, Respondent received training in the safe operation of school buses. As part of this training, Petitioner advised Respondent to exercise great caution at railroad crossings. Petitioner instructed Respondent on the correct procedures to follow when approaching and crossing a railroad track. During training, Petitioner provided Respondent with a copy of the Florida School Bus Drivers Handbook (Exhibit 4) which contains written procedures for bus drivers at railroad crossings. This handbook provides that the driver has the ultimate responsibility for the safe operation of the bus. It also contains a mirror provision of Section 316.1575, Florida Statutes, prohibiting anyone from driving through a railroad crossing when the crossing gate is closed or being opened or closed. Respondent's primary responsibility as a bus driver is to transport children to and from school. In the scope of his employment, he drives a bus through a railroad crossing on Forest Hill Boulevard near Interstate Highway 95 (I-95) everyday. On the morning of February 3, 1994, Respondent transported approximately sixty (60) children and two (2) teachers in a school bus on a field trip. Respondent exited I-95 and proceeded in a westerly direction along Forest Hill Boulevard. Respondent approached the railroad crossing on Forest Hill Boulevard near I-95 and stopped. After the bus came to a halt, the crossing lights started flashing and the crossing gate began to descend. Before Respondent proceeded across the railroad tracks, he did not: (a) open the school bus door to listen for the approaching train; (b) observe the signal lights as they started flashing; (c) observe the descent of the crossing gate; or (d) ensure that the passengers were quiet enough for him to hear the approaching train. As Respondent proceeded across the railroad track, the front of the bus struck the crossing gate, shattering it into several pieces. Respondent drove the bus to the other side of the crossing and stopped again before proceeding with the field trip. Two witnesses, concerned for the safety of the school bus passengers, immediately reported the incident to Petitioner's Transportation Department. Petitioner's employees must comply with school board policies and local rules which have been adopted in conformity with Chapter 120, Florida Statutes. Respondent failed to comply with those policies on February 3, 1994, by: (a) failing to open the school bus door before crossing the track; (b) failing to heed the warnings of the flashing lights and descending crossing gate; (c) failing to maintain silence on the bus until it crossed the tracks; and (d) proceeding across the tracks before it was safe to do so. On July 20, 1994, the Superintendent recommended that Petitioner suspend Respondent without pay and terminate his employment for failure to adhere to state law and school board policies governing the safe operation of school buses. On July 20, 1994, Petitioner voted to suspend Respondent without pay and to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that Petitioner enter a Final Order suspending Respondent without pay and terminating his employment due to willful neglect of duty and misconduct in office by failing to follow proper procedures while operating a school bus at a railroad crossing. RECOMMENDED this 6th day of December, 1994, at Tallahassee, Florida. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1994. APPENDIX TO RECOMMENDED ORDER 94-4679 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statues, on the parties' proposed findings of facts. Petitioner's Proposed Findings of Fact Accepted in substance but modified in Finding of Fact (FOF) Number 1. Accepted in FOF Number 2. Accepted as modified in FOF Number 3 & Number 4. The Prehearing Stipulation references Article 39 of the Union Contract; however, there is no record evidence concerning a grievance procedure. Accepted in substance in FOF Number 5. Accepted in FOF Number 6. Accepted in FOF Number 6. Accepted in substance in FOF Number 7-Number 12. Respondent's testimony that he did not see flashing red warning lights while he was stopped at the crossing is not persuasive competent substantial evidence. Accepted in FOF Number 12. Accepted in FOF Number 12. Accepted; See FOF Number 13 and Conclusions of Law Number 24-27. Accepted in FOF Number 2. Accepted in FOF Number 15-16. Respondent's Proposed Findings of Fact Respondent did not file proposed findings of fact. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813 Wanda Stimpson, Business Agent Fireman & Oilers Local 1227 Post Office Box 449 Boynton Beach, FL 33435 Dr. Monica Uhlhorn Superintendant of Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813
The Issue Whether petitioner was entitled to terminate respondent's employment or suspend her without pay because she failed to disclose two traffic infractions, an arrest, and several charges of law breaking?
Findings Of Fact In July of 1986, while a resident of Day, Florida, respondent Gloria Faye Townsend signed an application for employment by the Columbia County School Board. Among the questions on the form was No. 33, which asks: Have you ever been arrested, charged or held by military or civilian law enforcement authorities for violation of any law, ordinance or regulation? (Include traffic violations but not parking tickets) After the question came "yes" and "no," each followed by a box. Ms. Townsend, who completed the form herself, typed an "X" in the box next to "No." Petitioner's Exhibit B. Just above Ms. Townsend's signature appears the following: ... I also understand that employment is contingent upon the results of a thorough character and fitness investigation. [For which] I hereby give authority on this application[.] I am aware that willful withholding of information or making of false statement on this application will be the basis for dismissal. I agree to those conditions and hereby certify that all statements made on this application are true, complete and correct to the best of my knowledge. Petitioner's Exhibit B. Ms. Townsend submitted the completed form to the School Board. Some time later Earl Varnes, to whom Ms. Townsend had disclosed her hope of finding a teaching position in Columbia County, learned of a mid-year vacancy Grady D. "Sam" Markham anticipated at Five Points Elementary School. Mr. Varnes mentioned Ms. Townsend, who at all pertinent times has held a Florida teacher's certificate, no. 341799, to Mr. Markham. As principal for nine years, Mr. Markham's recommendation of a teacher to replace the one who left on maternity leave December 19, 1986, proved dispositive. Before he met Ms. Townsend, Mr. Markham had heard from Mr. Varnes about problems Ms. Townsend had encountered in Lafayette County, where she had resigned a teaching position, and been harassed by at least one law enforcement officer. Mr. Markham discussed traffic citations and other matters with Ms. Townsend during three face-to-face interviews and some dozen telephone conversations that preceded her coming to work. Mr. Varnes was not aware, however, that Ms. Townsend had been found guilty of passing a school bus while it was stopped or that she had been charged with opposing a police officer. (T. 112, 117, 118). After the initial interview, Mr. Markham "went to the School Board office and looked at the application" (T. 20) Ms. Townsend had submitted the preceding summer. He relied in part on the application in recommending her for the job. He did not, however, ask her about her mistaken affirmative answer to question No. 20(a), "Has your license to practice every been revoked or suspended?" Although Mr. Markham testified that he would not have recommended her for employment if he had known of her arrest or of the school bus infractions, (T. 23) she "told him about the bus stops ... the careless driving ... the deputy." (T. 81). Mr. Markham heard another version of events in December of 1987 from William F. Hart, who is principal of Lafayette Elementary School. After obtaining court records, Mr. Markham relayed information concerning Ms. Townsend's traffic infractions and arrests to Silas Pittman, who suspended Ms. Townsend effective March 8, 1988, and recommended to the School Board that she be suspended from employment, without pay, and that her employment be terminated. The School Board voted first to suspend, then to terminate her employment. In April of 1987, Mr. Pittman and Ms. Townsend executed an annual contract of employment for the period August 17, 1987, to June 4, 1988. Joint Exhibit No. 21. The agreement provides that "The teacher shall not be dismissed during the term of this contract except for just cause as provided in Section 231.36(1)(a), Florida Statutes." Id. The Law and Ms. Townsend On January 23, 1981, a Deputy Feagle of the Lafayette County Sheriff's Office stopped the car Ms. Townsend was driving and proposition her, but she was not interested. (T. 67) She has not been accused of violating any law on that day. On May 1, 1981, when she spotted Deputy Wendell Feagle manning a road block on the highway ahead of her, she turned onto another road "a secondary road ... instead of going through the road block ... and ... went through the Forestry Services, and then got back up on the highway ... and then went on home." (T. 68-69). About two weeks later, four or five "Sheriff's cars" arrived at the school where Ms. Townsend taught at the time. Asked to "come ... and talk with the judge" (T. 70), she got into the car Deputy Kenny Wimberly was driving. Instead of stopping at the courthouse, the caravan made its way to the jail in Mayo where a deputy sheriff gave her "five tickets." Nobody took Ms. Townsend's finger prints or told her she was under arrest. Petitioner offered in evidence two of the traffic citations Ms. Townsend received on May 1, 1981, No. 225-081W, charging careless driving, Petitioner's Exhibit No. 1, and No. 225-082W, charging her with "Attempting to Elude A Police Officer." Petitioner's Exhibit No. 5. On July 2, 1981, she was convicted "of the crime of [o]perating motor vehicle in a careless manner," Petitioner's Exhibit No. 3, and fined $25, but all other charges against her arising out of the events of May 1, 1981, were dismissed. Petitioner's Exhibit Nos. 7 and 9. (T. 74) Among the charges dismissed was the charge that, on May 1, 1981, "Faye Townsend did ... unlawfully obstruct or oppose a law enforcement officer ... in the execution of a legal duty, without offering or doing violence to the person of the officer." Petitioner's Exhibit No. 88. In a subsequent conversation, the Sheriff of Lafayette County told Ms. Townsend, "[W]ithin one year there will be no record of this," (T. 76) referring to the legal proceedings occasioned by the citations and affidavits Wendell Feagle executed against Ms. Townsend in May of 1981. When traffic citation No. 137-660Q, Petitioner's Exhibit No. 13, arrived in the mail, Ms. Townsend learned that it had been alleged that she "RAN SCHOOL BUS STOP SIGN," on October 24, 1984. Although the citation stated that it was for an infraction that did not require a court appearance, Ms. Townsend engaged a lawyer to contest the accusation; and to defend against a subsequent charge that she was guilty of the same infraction at the same place on November 8, 1984. Petitioner's Exhibit No. 15. Carla S. Brock, a teacher at Lafayette High School, drove the bus and executed the affidavits accusing Ms. Townsend on both occasions. After an evidentiary hearing on January 10, 1985, Ms. Townsend was "found guilty ... of passing a stopped school bus ... in both cases." Petitioner's Exhibit No. 18. Ms. Townsend testified to the effect that she viewed her legal problems as "minor traffic violations," (T. 66) and explained her answer to question No. 33, as follows: I think 43 was my signature, and 33 was asking me if I had been arrested, and I hadn't been arrested. A witness at hearing testified in regard to question No. 33, "it is highly unusual to see one that says 'including' traffic violation[s]." (T. 125).
The Issue The issues in this case are whether Respondent violated Sarasota County School Board policy and the Code of Professional Conduct of Non-Instructional Support Staff employed by the Sarasota County School District and, if so, whether Respondent's employment with the Sarasota County School Board should be terminated.
Findings Of Fact The School Board is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate, control, and supervise all public schools and personnel in the Sarasota County School District. Mr. Witt is the superintendent of schools for the Sarasota County School District. At all times relevant, Ms. Jones was employed with the School Board by contract as a school bus driver. In that capacity, Ms. Jones was classified as a non-professional and non-administrative contract employee of the School Board's transportation department. She agreed to accept the contractual appointment (school bus driver) to perform such duties and services as may be required to comply with all laws of the State of Florida and rules and regulations made by the School Board. The School Board's transportation department operated a bid policy for its school bus drivers. Under the School Board's bid policy, each school bus driver was afforded an opportunity to bid (make a written selection of a particular school bus route) on the school bus route for the forthcoming school year. At the start of the 2003-2004 school year, Ms. Jones bid upon and was awarded the Oak Park School (Oak Park) bus route. Oak Park was attended by elementary through high school-aged exceptional students or exceptional student education ("ESE") students, as defined under Section 4.12 of the School Board's policies manual. Ms. Jones was assigned bus number 9615. The first responsibility of the school bus driver is the safe operation of the school bus, and the second responsibility is providing discipline to those who are transported. In October of the 2003-2004 school year, Susan Snyder (Ms. Snyder) was assigned to work on school bus number 9615 as the school bus attendant. A school bus attendant's primary responsibilities are to ensure the safety of and provide care to the students that are being transported on the bus and to minimize distractions to the school bus driver caused by the students while being transported. The students who were being transported by Ms. Jones to Oak Park have behavioral issues, are physically handicapped, and/or have been unsuccessful at other schools within the Sarasota County School District. At various times during the 2003-2004 school year, between eight and 12 students between the ages 14 and 17 rode the bus driven by Ms. Jones. Four of those students were L.J., M.N., N.K., and J.M. The collective testimonies of these four witnesses established that they frequently used profanity on the bus in their daily conversations with each other and in their daily conversation, in the context of discipline, with Ms. Jones. The students would routinely yell among themselves and at Ms. Jones, and she, in return, would yell at them. When Ms. Jones told the students to do something, "sit down," "stop playing around," or "don't open the windows on the bus," the students refused to obey, and Ms. Jones would threaten the students with physical violence. Those threats would elicit like-kind responsive threats from the students. The evidence is inconclusive for the purpose of identifying specific profanity uttered by a specific student. However, the evidence is clear that an exchange of profanity occurred between Ms. Jones and the students identified in paragraph 4 hereinabove. At some unspecified time, but prior to December 9, 2003, Ms. Jones had previously and repeatedly instructed the students to leave the bus windows up while traveling. As they were traveling down Interstate 75 (I-75), N.K., ignoring Ms. Jones' previous instructions to leave the windows up, began lowering the window. Ms. Jones observed N.K.'s actions and repeated her instructions to leave the window up. She was unable to stop on the interstate, but when she reached the Fruitville, I-75 exit, Ms. Jones exited the interstate and stopped the bus. She then turned off the engine, got up from the driver's seat, and went to N.K.'s seat where she pushed N.K., and N.K. pushed her back. The shoving back and forth between Ms. Jones and N.K. ended with Ms. Jones slapping N.K. At the end of her bus run for that day, Ms. Jones reported the incident by a Student Discipline Referral Report. N.K. told his mother of the incident, and she informed Oak Park administration. After consideration of all the facts, Oak Park administration disciplined N.K. for his conduct on the bus. It is found that Ms. Jones willfully violated the School Board's policy by slapping N.K. The "Yugioh" playing cards incident The students would play a card game known as "Yugioh." The cards belonged to L.J. Ms. Jones had previously instructed the students not to play "Yugioh" on the bus because of the disturbance the game caused, and she specifically instructed L.J. not to bring his "Yugioh" cards on the bus. On December 9, 2003, L.J. and other students, with disregard of Ms. Jones' previous instruction not to play "Yugioh" on the bus, were again playing "Yugioh." Ms. Jones asked them to stop, and they ignored her. She asked L.J. to bring the cards to her, and he refused to obey her request. When she reached the stop sign at the intersection of South Briggs Avenue and Bahia Vista Street, in Sarasota County, Florida, Ms. Jones stopped the bus, turned off the engine, and approached L.J. where he was seated. An argument ensued, which was accompanied by Ms. Jones' attempt to take the cards from L.J. and his refusal to relinquish his cards. During this altercation, Ms. Jones struck L.J. about his head, shoulders, and face. She pinched his cheeks. L.J. and Ms. Jones exchanged vulgar insults back and forth. Ms. Jones told M.N., another student, to grab L.J.'s "titties" and pinch them, and he did so. It was noted that L.J. has a large body with an extraordinary fleshly chest. After the "tittie"-pinching incident, L.J. asked to be let off the bus at that location, which was not his usual bus stop, and Ms. Jones, as she returned to the driver's seat, initially refused to do so. After sitting in the driver's seat, Ms. Jones granted L.J.'s request to exit the bus at the intersection of South Briggs Avenue and Bahia Vista Street. It is found that Ms. Jones did not violate the School. Board's policy by permitting L.J. to get off the bus at a location other than his normal pick up and exit stop. Drivers are not allowed to prevent a student from getting off the bus; they can only call transportation dispatch and report the student by name and the location the student got off the bus. It is found that Ms. Jones did, however, violate the School Board's policy when she struck L.J. and when she requested and encouraged another student to inappropriately touch L.J.'s chest. When he arrived home, L.J. reported the bus incident to his parents, and they immediately registered a complaint against Ms. Jones with Oak Park administration. Two days later, December 11, 2003, L.J.'s father, L.J., Sr., filed a police report with the Sarasota County Sheriff's Department. An officer investigated the matter on December 19, 2003, by interviewing only L.J. and Ms. Snyder. Based upon those two interviews, the investigating officer recommended that the charge of battery be filed against Ms. Jones. There is no further evidence of record regarding the battery charge recommendation made by the investigating officer. The School Board's transportation dispatcher was informed of L.J.'s parents' complaint, and he radioed Ms. Jones and Ms. Snyder instructing them, upon completing the evening bus run, to report directly to his office and to give written reports of the L.J. incident. In her written report given immediately following the incident, Ms. Jones acknowledged that there was an exchange of profanity between her and the students involved, but she denied hitting L.J. or telling other students to pinch L.J.'s titties. The evidence of record reflects that Ms. Snyder did not dispute Ms. Jones' version of the incident. Ms. Snyder also executed a written incident report immediately following the incident containing her version of what occurred. According to the School Board, Ms. Snyder's initial written incident report was inexplicably lost. At the hearing, the School Board introduced an unsigned document (the School Board's Exhibit P-9) that was not sworn to by Ms. Snyder, purporting it to be a second revised report written by Ms. Snyder. This document is found to be unreliable. Later on the evening of December 9, 2003, after giving her written report that was somehow lost, Ms. Snyder called her Union representative and gave a description of what took place on the bus on December 9, 2003. A meeting was arranged with the director of transportation, Jody Dumas (Dumas). At the meeting, Ms. Snyder gave a version of the December 9, 2003, bus incident that was contrary to her earlier confirmation of Ms. Jones' December 9, 2003, written incident report. Ms. Snyder's recall of the December 9, 2003, incident alleged that Ms. Jones slapped and verbally abused and humiliated L.J. She went on to include a claim that Ms. Jones intimidated her and the students by telling everyone on the bus that they were to say nothing happened on December 9, 2003. Mr. Dumas conducted his investigation of Ms. Snyder's allegations by interviewing M.N. and J.M. on December 12, 2003. During the initial interview, M.N. confirmed Ms. Jones' version of the incident. Under the pressure of Mr. Dumas' continuous questioning, coupled with the promise that he would not be required to ride Ms. Jones' bus anytime in the future, M.N. capitulated and confirmed the "tittie"-pinching version of the incident and agreed with Ms. Snyder's "say nothing happened on December 9, 2003," addition to her version of the incident. It is found that Ms. Jones did in fact instruct another student to pinch L.J.'s titties, and the student, for reasons of his own, complied with the request while L.J. sat there humiliated. The evidence of record in support of Ms. Snyder's allegation that Ms. Jones intimidated her and all the students on the bus by telling them "say nothing happened on December 9, 2003," is unreliable and rejected by the undersigned. On December 10, 2003, Mr. Dumas suspended Ms. Jones with pay pending further investigation of the December 9, 2003, incident. Mr. Dumas, after his review of Ms. Snyder's version of what occurred and his interviews with unnamed students, met with Ms. Jones and confronted her with the "slapping and verbal abuse of [L.J.]" allegations. Ms. Jones denied slapping and verbally abusing L.J., at which time Mr. Dumas advised Ms. Jones that he would recommend her termination to the School Board. It is found that the suspension of Ms. Jones by Mr. Dumas was appropriate and in accordance with the School Board's policy. On December 19, 2003, in his memorandum to Scott Lempe (Mr. Lempe), director of human resources, Mr. Dumas set forth specific factual bases in support of his recommended termination of Ms. Jones: (1) Ms. Jones slapped L.J. at least two times in the face; (2) Ms. Jones told another student on the bus, M.N., to go over to L.J. and pinch his titties; and (3) on at least one other occasion, Ms. Jones told one student to slap another student because he was putting a window down. Mr. Lempe prepared a notice of termination on January 5, 2004, containing his detailed explanation of the grounds for the termination based upon Ms. Jones' violations of Section 5.30(2)(c) of the Sarasota County School Board policies manual, regarding corporal punishment and the Policy Manual, Code of Professional Conduct of Non-Instructional Support Staff, and Sections 1012.22 and 1012.27, Florida Statutes (2003), insubordination and misconduct in office. On February 18, 2004, the School Board terminated the employment of Ms. Jones with its transportation department as a school bus driver. The School Board proved, by a preponderance of credible evidence, that Ms. Jones violated the School Board's policy and the Code of Professional Conduct of Non-Instructional Support Staff employed by the Sarasota County School District, as alleged in the notice of termination dated February 18, 2004.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Petitioner, Sarasota County School Board, enter a final order terminating the contractual employment of Respondent, Nancy Jones. DONE AND ENTERED this 19th day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Appalachia Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2004. COPIES FURNISHED: Robert K. Robinson, Esquire Bowman, George, Scheb, Toale & Robinson 2750 Ringling Boulevard, Suite 3 Sarasota, Florida 34237 Nancy Jones 1280 Highland Street Sarasota, Florida 34234 Gene Witt, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3304 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent, Patricia Banks', employment as a school bus operator based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. Since October 31, 2001, Respondent has been employed by the School Board as a school bus operator. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (the "SPALC Agreement"). In September 2004, Respondent was assigned to drive a morning route and an afternoon route. Her morning route ended at about 10:00 a.m., and her afternoon route commenced at about 1:30 p.m. Respondent's daughter, India Miller, also worked as a school bus operator for the School Board. On September 20, 2004, between her morning and afternoon routes, Respondent drove her daughter to the Wal-Mart store on Colonial Boulevard in Fort Myers. Ms. Miller's car was not running, and she was in the process of moving into a new residence. She had asked Respondent to take her to Wal-Mart to purchase cleaning supplies and to look into buying a new computer. Respondent and Ms. Miller were wearing their School Board bus driver uniforms. Respondent parked her car in front of the store, but near the garden department, which is on the side of the building along with the automotive department. Respondent and Ms. Miller entered the building through the front or "general merchandise" ("GM") entrance. Respondent and Ms. Miller proceeded to the electronics department to look at computers. They were assisted by David Heady, a sales associate in the electronics department. Mr. Heady testified that Respondent asked him several questions about the functionality of a certain computer, an eMachines desktop model priced at $698.00. Each woman said she wanted one of the computers, but Mr. Heady had only one of them on the floor. He put that one in a shopping cart for Respondent, then proceeded to the storeroom to get a second computer for Ms. Miller. When he returned with the second computer, about three minutes later, Mr. Heady noticed that Ms. Miller and the first computer were gone. Respondent told him that Ms. Miller had taken the computer to the front of the store to check out. This disturbed Mr. Heady because it is Wal-Mart's policy that all computers should be paid for in the electronics department. Mr. Heady's suspicions were also somewhat aroused by the fact that it was Ms. Miller who took the first computer out of his department, when it was Respondent who had asked for it. According to Mr. Heady, Respondent started toward the front of the store with the second computer, but Mr. Heady stopped her and told her she had to pay for it in the electronics department. Respondent paid cash for the computer, a total of $739.88, then left the electronics department. Mr. Heady then called the loss prevention office and spoke with loss prevention officer, Bernard "Bo" Lee, to inform him that a computer that had not been paid for had been removed from the electronics department. He testified that he checked out Respondent before alerting loss prevention of the missing computer because he did not want a confrontation with Respondent. Mr. Heady also informed his supervisor in the electronics department, Terrell Russ, about the missing computer. Mr. Russ, in turn, made his own call to loss prevention and spoke with another loss prevention officer, Mickey Holman. Respondent testified that she and her daughter went into the electronics department because her daughter wanted a new computer. Respondent stated that she knows very little about computers and that it was Ms. Miller who was asking technical questions of Mr. Heady. Respondent did ask if Mr. Heady had a second computer because she was interested in placing one on layaway for her sons. Respondent testified that there was no computer on the floor of the electronics department. When her daughter told Mr. Heady she wanted to buy the model under discussion, he had to retrieve it from the storeroom. Respondent testified that she waited for Mr. Heady to bring the computer while Ms. Miller shopped for her cleaning supplies. Mr. Heady returned with the computer and told Respondent that she would have to pay for the computer before she could take it out of the electronics department. Respondent called Ms. Miller on her cell phone and told her that she had to come back to the electronics department to pay for the computer. Respondent also asked Ms. Miller if she could afford to lend her the money to place a computer on layaway. Ms. Miller responded that she would not know until she completed her purchases. Respondent could not recall whether Ms. Miller told her that she was coming back to purchase the computer. Respondent left the electronics department and walked to the in-store McDonalds to eat lunch. Finding the McDonalds too crowded, she went outside to smoke a cigarette. The one piece of documentary evidence available at the hearing was the Wal-Mart receipt for the purchase of the computer. The receipt indicates that the computer was purchased with cash in the electronics department, though it does not establish whether it was Respondent or Ms. Miller who made the purchase. Respondent's testimony agrees with that of Mr. Heady on one point: Ms. Miller left the electronics department and was separated from Respondent for at least several minutes. Messrs. Lee, Holman, and Russ all observed Ms. Miller during the time she was separated from Respondent. Mr. Lee testified that he was patrolling the floors of Wal-Mart to watch for shoplifters. He noticed three black women, including Ms. Miller and two unidentified women, placing an eMachines computer in a shopping cart. Mr. Lee stated that the eMachines computers were a "hot item," and he, therefore, paid special attention when customers placed them in shopping carts. Though he had seen Respondent with the other women in the electronics department, Mr. Lee did not see her touch the computer. Mr. Lee stated that he followed Ms. Miller to the front of the store. Respondent was still in the electronics department. Mr. Lee observed Ms. Miller push the cart holding the computer to the line of cash registers, through the line, past the greeter who checked her receipt, and out the GM entrance. Though he did not specifically observe Ms. Miller pay for the computer at the front registers, Mr. Lee assumed that it had been paid for because the greeter allowed her to leave the store without incident. From just inside the GM doors, Mr. Lee watched Ms. Miller walk to a car in the front parking lot. Mr. Lee did not see Ms. Miller load the computer into the car, but he did observe her re-enter the store a few minutes later, without the computer, but carrying a Wal-Mart receipt. He followed Ms. Miller to the toy department, where she met Respondent and the two unidentified women standing near a shopping cart containing a second eMachines computer. Mr. Holman testified that after being radioed by Mr. Russ that a computer had been taken from the electronics department by one of two women in school bus driver uniforms, he began searching the store. He observed Ms. Miller go through the checkout area and past the greeter, who signaled that Ms. Miller had a receipt for her computer. Mr. Holman radioed to the electronics department and told them there was no problem, that the woman had paid for the computer. The person in electronics who answered told Mr. Holman that there was a second computer. Mr. Holman went to look for the second computer while Mr. Lee maintained his surveillance on Ms. Miller. Mr. Holman found the missing computer sitting in an unattended shopping cart in the toy department. After a minute or two, he saw Respondent approach the cart. Then, two other women joined her, and they began talking. Mr. Holman stated that Respondent approached the cart several times, but did not actually touch or take hold of it. After a few minutes, Ms. Miller approached the group of three women. Mr. Lee followed her and maintained his surveillance apart from Mr. Holman. Both loss prevention officers were out of earshot of the four women. Mr. Lee recalled that Ms. Miller handed the receipt to Respondent at that point, though they later passed it back and forth more than once. After some conversation, the two unidentified women walked away. Ms. Miller began pushing the cart containing the computer toward the automotive department called the "TLE" for "Tire and Lube Express." Respondent walked in front of the cart. Mr. Lee noted that exiting through the TLE in the rear of the store would require Respondent and Ms. Miller to walk around the outside of the store to reach the front parking lot and that exiting through the GM entrance would be much more convenient. Mr. Lee testified that this behavior alone would have aroused his suspicions. The women guided the cart out through the TLE entrance. Ms. Miller pushed the cart, and Respondent lifted the front of the cart over the metal strip in the doorway. The electronic article surveillance ("EAS") system did not sound an alarm. Mr. Lee testified that it is not unusual for the EAS system not to sound, and he attached no significance to its silence. After the women were outside the store, Mr. Lee and Mr. Holman approached and asked them to return to the store. Ms. Miller told the men they had scared her. She said, "I pissed myself [sic]." Ms. Miller also told Mr. Lee that she had a receipt for a computer. Mr. Lee found it significant that she said "a computer," rather than "this computer." Mr. Lee and Mr. Holman escorted the women to the loss prevention office. Ms. Miller, ultimately, admitted to stealing the computer. Respondent denied doing anything wrong and was visibly upset when she was detained. In the loss prevention office, Respondent called her employer on her cell phone to arrange for someone to cover her afternoon bus route. None of the Wal-Mart employees present in the loss prevention office could recall Respondent's making any statement that could be construed as incriminating. The local police arrived, and both women were arrested. Ms. Miller subsequently resigned her employment with the School Board. At the time of the hearing, Respondent's criminal case had not been resolved. Again, Respondent told a different story. While she was smoking her cigarette outside, Respondent began to worry about finishing the shopping in time to drive her afternoon bus route. She called Ms. Miller on her cell phone and asked how much longer she would be in the store. Ms. Miller told Respondent that she was paying for her merchandise and asked Respondent whether she had seen her in-laws in the store. Respondent said that she had not seen them and asked where they were. Ms. Miller told her that she last saw them in the toy department. Respondent finished her cigarette, then walked back into Wal-Mart. She walked to the toy department and found her relatives where Ms. Miller had last seen them. Respondent noted that they had a computer in a shopping cart. One of the in-laws told her that it was Ms. Miller's computer, and they were waiting there for Ms. Miller to return. Ms. Miller arrived, took control of the shopping cart, and asked Respondent if she was ready to go. Respondent saw a Wal-Mart receipt in her daughter's hand. Ms. Miller told Respondent that she needed to buy something in the automotive department. Ms. Miller pushed the cart toward the rear of the store, where the TLE was located. When they reached the TLE, Ms. Miller began asking questions of the sales associate. Respondent interrupted her, saying they had to leave in order to make their afternoon bus routes. Ms. Miller pushed the cart out the TLE entrance, and they were approached by Messrs. Holman and Lee, who told them they needed to come back inside. Ms. Miller said, "Oh, shit. You're gonna make me piss on myself." Respondent wondered why Ms. Miller was reacting so strongly, if she had done nothing wrong. Respondent was adamant that she had no idea Ms. Miller was attempting to steal a computer. Respondent believed Ms. Miller had paid for the computer. Respondent testified that she and Ms. Miller had both worked for Wal-Mart in the past, and both knew that a customer is not allowed to take a computer from the electronics department without paying for it. Ms. Miller apparently had a receipt for the computer. Respondent testified that it never crossed her mind that Ms. Miller would steal a computer; that she believed her daughter "had better sense than that." Based upon the testimony of all the witnesses, including the deposition testimony of Messrs. Lee and Holman, and the documentary evidence, it is found that the School Board did not prove by a preponderance of the evidence that Respondent stole a computer from Wal-Mart. The evidence certainly demonstrated that Respondent's daughter, Ms. Miller, attempted to steal a computer. However, even if the testimony of the School Board's witnesses were accepted in its entirety, no witness definitively linked Respondent to the computer in such a way as to demonstrate her guilty knowledge that it was being stolen. The testimony of Mr. Holman cannot be credited. After detaining Respondent and Ms. Miller, Mr. Holman prepared a written report attesting that he observed Ms. Miller purchase a computer in the electronics department and take it to her car, while Respondent selected another computer, put it in a shopping cart, and took it to the toy department. In his pre-hearing deposition, Mr. Holman testified that he saw Ms. Miller select and pay for a computer in the electronics department. During cross-examination during the final hearing, Mr. Holman conceded that he witnessed none of these events. Mr. Holman's efforts to explain his misleading statements were unconvincing. He essentially stated that his reporting practice was to write a first-person narrative commingling hearsay reports from other witnesses with his own personal observations. Thus, when Mr. Holman wrote, "I observed a female (India Miller) purchase a desktop PC in the electronics [department]," he actually meant that Mr. Lee observed the purchase and later told Mr. Holman about it. Mr. Holman's testimony must be disregarded because the undersigned cannot reliably distinguish between Mr. Holman's first-hand observations and the hearsay statements that he adopted as his own. The testimony of the remaining witnesses conflicted on key points. The evidence established that Mr. Heady was confused as to the time of day during which the relevant events occurred. Mr. Heady had no recollection of the two unidentified black women whom Mr. Lee stated were with Respondent and Ms. Miller in the electronics department. Mr. Lee stated that he saw Ms. Miller and the two unidentified women put a computer in a shopping cart. Mr. Heady testified that he placed the computers in the shopping carts. Mr. Heady testified that Respondent paid for the first computer. However, he also testified that it was Respondent who asked him technical questions about the computer's capabilities. Respondent credibly testified that she is ignorant about computers and that it was her daughter who was asking Mr. Heady the technical questions. It is likely that Mr. Heady's recollection was confused and that it was Ms. Miller who paid for the first computer. Respondent's narrative of the relevant events was not without its inconsistencies, but the burden was not on Respondent to establish her innocence. Respondent's narrative was credible as to the key point, that she did not know her daughter was attempting to steal a computer from Wal-Mart. The evidence presented by the School Board was insufficient to demonstrate that Respondent ever gave any indication, through her words or her actions, that she knew Ms. Miller had not paid for the computer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Lee County School Board, issue a final order dismissing the Petition for Termination of Employment, reinstating the employment of Respondent, and awarding her back pay and benefits retroactive to December 16, 2004. DONE AND ENTERED this 15th day of July, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2005.
